Clinical Negligence Claims could be first Casualty of Higher Fees

Since Spring, there’s been a change to the way fees are calculated in civil court cases. Any claims brought in excess of £10,000 are subject to issue fees of 5% of the claim amount. This amount can in itself rise to £10,000, at which point it’s capped regardless of the size of claim thereafter.

The Law Society sees the increase in fees, imposed by the government on March 15th, as a barrier to justice for many. Not just for law firms. Many civilians with bona fide claims could see their case rejected because of how much capital a law firm already has tied up in its ongoing cases.

Legal Aid Truncation + Increased Fees = Less Access for All

Two years ago, changes to Legal Aid meant that access to representation for those who’d suffered at the hands of medicine became limited. The new changes may add further barriers to justice, as the increased issue fees put more duress on law firms’ finances.

Large clinical cases may now mean law firms having to lay out up to £10,000 to bring them to court. As medical claims can stretch back years and take an age to get through court, many fall into this high-value bracket.

If negligence is in doubt, or the defendant denies blame in order to test a claimant’s mettle (or pockets), law firms may be put off from taking cases on.

Even if they did take all cases on without question, there’s still a problem. Because of the new rules, lawyers could see swathes of capital tied up in existing court cases for indefinite periods. This will affect their cash flow and willingness to take on certain cases.

For smaller firms, the new legislation could take them beyond their business model. Possessing only the capacity to fund smaller claims, they may decide the claim business is simply not worth the hassle.

Funding your own claim just got harder, too

It’s not all about the injustice to solicitors. Under the previous rules, a percentage of claimants were able to fund their own fees.

As an example, a fee of 5% for a £200,000 claim is the maximum £10,000 cap. Before March of this year, associated fees for that size claim would have been a little over £1,500.

If a firm was unwilling to pay the fees for whatever reason, but the claimant could fund their case, £1,500 was not such a stretch. But to expect a member of the public to find £10,000 against this economy?

Perhaps only 5% of the populace could lay their hands on that type of cash to fight for justice without suffering financially if the result didn’t go their way. If ATE insurance was unattainable, that’s 95% of the UK left unable to fund a large medical negligence case if their criteria didn’t overcome the stringent Legal Aid hurdles.

If you fire enough shots, you’re bound to hit your target

Perhaps the move by the government, which applies to the whole legal section, is intended to make law firms think twice about the cases take on. Maybe it is intended to clamp down on the spurious soft tissue and whiplash accident claims.

But is strafing the field and destroying the crop just because there’s a weevil in there somewhere the right way to go? The government must acknowledge that the higher fees rule is barring access to justice for those who deserve it and must seek to correct it.

Is it worth jeopardising the lives of people who’ve already suffered at the hands of people who were supposed to make them well just to catch out charlatans who’d otherwise think twice about making a claim?

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